Obama Continues Delicate Dance on ‘Tax’

President Barack Obama delivers remarks at Dobbins Elementary School in Poland, Ohio, July 6, 2012.

No amount of prodding, it seems, will get the White House to concede that the individual mandate tied to the health-care overhaul is, at bottom, a tax.

Following the Supreme Court decision last week, President Barack Obama has been struggling to square his no-new-middle-class-taxes promise with the court’s ruling that the law is constitutional precisely because it is a tax.

White House aides are happy to describe the enforcement mechanism as a “penalty,” even a “charge.’’ But the word “tax’’ is verboten.

Mr. Stephanopoulos followed up: “You keep wanting to use the word ‘penalty.’ “

After some more byplay, Mr. Lew said: “The court found it constitutional. Frankly, what you call it is not the issue. It’s what it is.’’

Just so long it is not a tax.

Aboard Air Force One last week, White House Press Secretary Jay Carney faced much the same question.

“So you guys are still saying it’s a penalty, not a tax?’’ a reporter asked.

Mr. Carney invited people to “call it what you want.’’ He then said, whatever it is “it is not a broad-based tax.’’ And finally, he made the argument that it is a “penalty’’ after all.

For clues as to why the White House is giving no ground, it’s useful to go back to the 2008 presidential race. As a candidate, Mr. Obama pledged that he wouldn’t stick the middle class with any new taxes.

He went before an audience in Orlando and vowed that for families earning less than $250,000 a year, “my plan will not raise your taxes one penny. Not your income tax. Not your payroll tax. Not your capital gains tax. Not any of your taxes.”

After taking office, he gave a speech to a joint session of Congress devoted to his health-care proposal. He echoed that theme, pledging that “the middle class will realize greater security, not higher taxes.’’

So with an election coming up, it would prove awkward for Mr. Obama to allow that some new taxes are indeed part of the equation.

But a review of the record shows many instances—before the bill passed and afterward — in which the administration and its congressional allies described the individual mandate as just that: a tax.

U.S Sen. Max Baucus (D., Mt.), an architect of the health-care legislation, fielded a question on the Senate floor in December 2009 about the bill’s constitutionality. Mr. Baucus insisted the bill’s provisions were constitutional, citing Congress’s “tax-and-spending’’ power along with the Commerce Clause (the Supreme Court would disagree with him on the latter).

In a Supreme Court brief submitted by the Obama administration, government attorneys also cited the tax powers as the Constitutional basis for the part of the law requiring that people obtain a minimum level of coverage.

“Congress’s power ‘to lay and collect taxes …’ provides an independent basis to uphold the constitutionality of the minimum coverage provision,’’ the Obama administration brief reads.

It goes on to say that the minimum coverage requirement “is fully integrated into the tax system, will raise substantial revenue and triggers only tax consequences for non-compliance.’’ And then: “The court has never held that a revenue-raising provision bearing so many indicia of taxation was beyond Congress’s taxing power, and it should not do so here.’’

Defending the law before the Supreme Court in March, Solicitor General Donald B. Verrilli, Jr. invoked the same argument.

In an exchange with Justice Elena Kagan, he said that “not only is it fair to read this as an exercise of the tax power, but this court has an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.’’

Mr. Verrilli’s goal, of course, was to win the case. At this point in the calendar, Mr. Obama’s goal is to win re-election. So he won’t be uttering the T-word.

On Friday, he gave a campaign speech in Ohio and talked about his health-care plan.

He mentioned “all these folks saying, ‘oh, no, no, this is a tax, this is a burden on middle class families …’ ”

That’s not it at all, he said.

“So what we’re going to do is we’re going to charge you a penalty to make sure that you’re not uploading these costs on everybody else.’’

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